Common Law Marriage Is A Common Myth

Catherine advises on all aspects of family law, specialising in the financial complexities of divorce and acting for high net worth individuals and advising on the separation of non-married couples. Catherine is a qualified collaborative lawyer and is a member of the London Collaborative Group.

Many people believe that ‘common law marriage’ is a legally binding entity. Sadly, it’s just a myth, and the reason that’s sad is because many unmarried couples rely on it.

The truth is that unmarried couples who live together have few rights in relation to each other’s property, regardless of how long they’ve been cohabiting. If a couple in a marriage or civil partnership have a relationship breakdown, the courts will aim to divide the party’s assets ‘fairly’. This isn’t the case when an unmarried cohabiting couple separate. In this situation, the person who owns the property in their name will be entitled to it (subject to some limited situations where the other person could make a claim).

The truth is that unmarried couples who live together have few rights in relation to each other’s property, regardless of how long they’ve been cohabiting.

If you separate, and the property you share with your partner is not in your name, then you could find yourself homeless. This would be particularly devastating if you’ve been with your partner for many years and have children together. You could be left with very little.

Yet there is a solution.

A cohabitation agreement can give you security

The solution is to make a cohabitation agreement, in case you ever separate. People often don’t think about what could happen to them if their relationship were to break down, until it’s too late. That’s why it’s a good idea for both of you to make a cohabitation agreement now, while you’re still enjoying a good relationship. Think of it as an insurance policy; it covers something you don’t want to happen, but means you’ll be protected.

A cohabitation agreement records what you and your cohabiting partner have agreed should happen if your relationship ends and you no longer want to live together. The agreement will be unique to you and your partner, but I suggest it should at least cover property ownership, finances and arrangements for any children from your relationship. Provided you both agree, you can include whatever matters to you – including who keeps the pets!

A cohabitation agreement records what you and your cohabiting partner have agreed should happen if your relationship ends and you no longer want to live together.

For the agreement to be legally binding, it’s important each of you has independent legal advice, in case the other person later alleges the agreement was made under duress.

Incidentally, you don’t have to be in a relationship with the person you are living with, to have a cohabitation agreement. If you’re simply sharing a house with someone, it’s still a practical safeguard.

Other ways to protect your future

Making a cohabitation agreement is not the only step you can take to ensure both you and your partner are protected if you separate. It’s worth thinking about a declaration of trust and your Wills; I’ll briefly explain why.

A declaration of trust concerns property ownership. It sets out who owns what and in what proportion, and can be very important if you and your partner are buying a property but not both contributing the same amount.

The reason each of you should make a Will is because the intestate rules (which apply when someone dies without a Will) don’t provide any right of inheritance for a cohabitee. So, if you want your estate, which includes your property, to pass to your partner on death, you need to specifically state this in your Will. And of course, your partner will need to do the same.

Happy ever after

Cohabiting couples are often unaware they have fewer rights than their married counterparts. However, I hope this has shown you that there are safeguards you can put in place.

The lack of public awareness about the limited rights of cohabiting couples, and what can be done to provide peace of mind, led Resolution to spearhead a national campaign. During Cohabitation Awareness (27 November 2017 – 1 December 2017) some of my colleagues at Taylor Vinters wrote articles you might find interesting:

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